Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Supreme Court’

Supreme Court upholds workplace arbitration, and it’s Epic

My latest at Cato on this week’s decision upholding agreements to individually arbitrate wage and hour claims, in Epic Systems Corp. v. Lewis:

Yesterday’s 5-4 Supreme Court decision upholding agreements to individually arbitrate wage-and-hour claims was neither surprising nor novel as a legal matter. Nor – notwithstanding the variously breathless, furious, and apocalyptic reactions it has drawn from stage Left – is it objectionable as a matter of policy, or “anti-worker.” It is pro-liberty, pro-contract, and pro-respect for private ordering….

NPR, which really should know better, misreported on Twitter that “The Supreme Court in a 5-4 vote has delivered a major blow to workers, ruling for the first time that workers may not band together to challenge violations of federal labor laws,” of which the first eight words count as accurate reporting, the next half-dozen as erroneous opinion, and the remainder as merely false in fact….

…an oft-heard argument is that a contract presented as a take-it-or-leave-it matter, as is typical of employer handbook policies, credit card terms and the like, doesn’t count as a “real” contract and is entitled to no respect as a matter or law or, presumably, from libertarians. … Properly evaluating that claim is a task for another occasion, but my colleague Andrew Grossman is surely right when he points out that every hour of the day workers choose to accept overall employment packages including some terms they welcome (health insurance coverage, paid vacations) along with others they may not (some weekend hours required, don’t take staplers home) and that the lack of dickering over individual terms does not mean that they are not voluntary or have somehow been imposed by force.

Whole thing here. As I wrote after Italian Colors, millions of people “sign away their class action rights not because they are all hoodwinked or coerced, but because at some level they have rational grounds to recognize that” those rights are mostly of value to the class action industry.

Speaking of Italian Colors, the outcome in Epic Systems would surely have been no different had Scalia lived, since he led the way on the Court toward respecting contractual arbitration clauses and upholding the broad scope of the Federal Arbitration Act. More from Archis Parasharami and Dan Jones at SCOTUSBlog: “The best available empirical evidence shows that employees who arbitrate their claims are more likely to prevail than those who go to court, and to obtain awards that are the same as or larger than court awards in a shorter amount of time.” More: James Copland.

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Supreme Court roundup

  • More on this to come, but Epic Systems, the workplace arbitration decision, is an epic win for contractual freedom and a big loss for the class action bar [earlier here and here]
  • SCOTUS will revisit 1985 Williamson decision, which “makes it very difficult to bring takings cases in federal court.” [Ilya Somin on cert grant in Knick v. Township of Scott, earlier]
  • Gorsuch and Thomas: similar originalist methods, which do not always arrive at similar results [Ilya Shapiro]
  • “Can Agencies Adjudicate Patentability?” Two views of the recent case Oil States Energy Services v. Greene’s Energy Group [Cato “Regulation,” Jonathan Barnett and Jonathan Stroud via Peter Van Doren]
  • “Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana” [Jay Schweikert]
  • Quantitative analysis of amicus brief success at Supreme Court tells many stories, among them the sterling record of the Cato Institute’s amicus program [Adam Feldman, Empirical SCOTUS]

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Sports gambling case reaffirms curbs on federal dictation to states

In the New Jersey sports betting case, a Supreme Court divided 7-2 confirms that the Constitution sharply limits the power of the federal government to compel states to enact laws furthering federal policy. The implications are many in fields “from environmental regulation to sanctuary cities, marijuana to guns.” [Ilya Shapiro] [Ilya Somin] It’s a “major victory for federalism….makes clear that a majority of the Court is strongly committed to the anti-commandeering principle. That bodes well for state efforts to oppose commandeering (and perhaps other types of federal coercion) in other areas.” Earlier here, here, here, etc.

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Supreme Court roundup

  • After oral argument, case challenging agencies’ use of in-house administrative law judges (Lucia v. SEC) remains hard to predict [Ilya Shapiro, Cato; earlier]
  • In dissent from cert denial: “Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations” [Eugene Volokh, Ilya Shapiro and Matthew Larosiere on Garco Construction, Inc. v. Speer]
  • High court still gun shy [Trevor Burrus and Matthew Larosiere on refusal to review Maryland felon gun possession ban] Ninth Circuit ruling on zoning exclusion of firearms business deserves cert review [Shapiro and Larosiere on Teixeira v. Alameda County] Court denies cert in widely watched Defense Distributed First Amendment case on dissemination of plans for 3-D printed weapon [Smith Pachter, earlier] A historical look: “The American Indian foundation of American gun culture” [David Kopel]
  • “The Supreme Court’s grant of a Contracts Clause case for the first time in a quarter-century reminds me that a certain John G. Roberts wrote a student note on the Clause back in 1978 (available at 92 Harv. L. Rev. 86).” [Aditya Bamzai on Twitter]
  • University of Chicago Law Review special issue on Justice Scalia [Will Baude; other recent Scalia scholarship includes articles on his influence in implied rights of action and standing]
  • Case on cert petition before SCOTUS could clarify law on distribution of property after church schisms [Samuel Bray on Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church]

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Supreme Court takes Ted Frank’s Google cy pres case

The Supreme Court has agreed to review Frank v. Gaos, a case in which Ted Frank is objecting to a Google class action settlement. [Barbara Leonard, Courthouse News; Kieren McCarthy, The Register (U.K.)] From the latter piece:

Of the $8.5m that Google has agreed to pay out, not a single cent will go to the actual users whose privacy was violated. It will instead go to the lawyers that brought the case on behalf of those users ($2.125m, no less) and a group of seven organizations that the lawyers, along with Google executives, decided should become “cy pres” recipients.

Those recipients have been controversial from the moment they were named: three of them are law schools, and just so happen to be the same law schools that the lead lawyers went to; and the remaining four are organizations that Google has repeatedly given money to, in large part because they share the same values and goals as Google itself….

His position is quite clear: the use of cy pres – pronounced, fittingly, “sigh, pray” – should be a last resort, and if used, there should be no conflict of interests or even the appearance of a conflict, for those involved in drawing up the list for who gets the money.

Dubious use of cy pres has been a regular topic here at Overlawyered, even before the years when Ted blogged here:

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Supreme Court further reels in Alien Tort Statute

In my new Cato piece, I welcome the Supreme Court’s 5-4 decision in Jesner v. Arab Bank, in which it continued its series of cases cabining the for-a-while-adventurous scope courts had begun to assign to the Alien Tort Claims Act of 1789, often called the Alien Tort Statute. In its new decision, the Court ruled that unless Congress provides by law for such application, the statute does not apply to foreign corporations as distinct from natural persons. “Issues of foreign affairs are peculiarly the province of the political branches, which can weigh (and take responsibility for) the dangers of engendering friction with foreign sovereigns by extending liability…. The Court has simply made it clear that if the United States courts are to become a sort of human rights policeman to the world, it is Congress that will need to decide to fit them out for that task.” Justices Gorsuch, Alito, and Thomas, concurring, would have gone further in confining the ATS to the instances in which Congress has chosen to create a cause of action through legislation. More on Jesner from Amy Howe at SCOTUSBlog here and here; related on Kiobel in 2013 here, here, etc. More: Federalist Society “Courthouse Steps” with William Casto and Sam Estreicher.

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“Surprised by Neil Gorsuch’s ruling? You weren’t paying attention.”

In the case of a federal law providing for the mandatory deportation of lawful permanent residents convicted of a hazily defined “crime of violence,” Justice Neil Gorsuch steps comfortably into Nino Scalia’s shoes as the Court’s champion of void-for-vagueness invalidation of criminal laws whose contours were left overly unclear. “It doesn’t make him a squish. It makes him an originalist,” [Ilya Shapiro, Washington Examiner; opinion in Sessions v. Dimaya] More: Jay Schweikert, Cato.

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Maryland gerrymander before the Supreme Court

This week the Supreme Court heard oral argument (transcript) in Benisek v. Lamone, the challenge to Maryland’s gerrymandered Sixth District. I was there with some critics of the gerrymander in front of the Court steps and spoke to a number of reporters afterward [Danielle Gaines, Frederick News-Post; Bruce DePuyt, Maryland Matters] See also Eric Boehm, Reason. Earlier here. Background links on Maryland case: Cynthia Prairie, Maryland Reporter in January.

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Michael McConnell on the Masterpiece Cakeshop case

The Stanford law professor has penned “Dressmakers, Bakers, and the Equality of Rights” for the forthcoming volume “Religious Freedom, LGBT Rights, and the Prospects for Common Ground” (William N. Eskridge, Jr. and Robin Fretwell Wilson, eds. 2018). [SSRN, Volokh] Abstract:

Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony, and why this should be understanding as an equality of rights, rather than prioritizing free speech over nondiscrimination.

Earlier on Masterpiece Cakeshop here.

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Compelled marketplace speech and the First Amendment

California law compels “crisis pregnancy centers” whose mission is to provide alternatives to abortion to advise clients that the state of California offers free or low-cost abortion, contraception, prenatal counseling, and other services to eligible women. An instance of compelled speech that rises to the level of a First Amendment violation? [Ilya Shapiro as part of SCOTUSblog symposium on NIFLA v. Becerra; Shapiro, Trevor Burrus, and Meggan DeWitt, Cato]

Related: Courts should apply strict scrutiny to compelled-disclosure laws requiring firms to disparage own products or take part in public debate [Shapiro and DeWitt on cert petition in CTIA v. Berkeley, on Berkeley, Calif. law requiring cellphone vendors to warn customers of radio frequency exposures even though the FCC has found no scientific evidence to link to any illness]

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